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2002 DIGILAW 1737 (RAJ)

Annu v. Chyanan Gir

2002-10-22

S.C.SINGHAL

body2002
SINGHAL, Member – This revision has been filed by the applicants under Section 230 of the Rajasthan Tenancy Act, 1955 (in short ``the Act) against the order of S.D.O., Nohar dated 14.9.99, by which their application under Section 47 of CPC has been rejected in execution proceeding. (2). In short, the facts of the case are that the non- applicants filed a suit under Section 88 of the Act against the applicants in the court of S.D.O., Nohar which was decreed by the learned S.D.O. after hearing both the parties, on 3.10.86 with regard to khasra No. 381 area 10 bighas, Khasra No. 386 area 4 bighas 5 biswas and khasra No. 380 area 1 bighas 15 biswas situated at village Dumasar. No appeal has been filed by the applicants against the judgment and decree of the S.D.O. dated 3.10.86, neither before Revenue Appellate Authority nor in any competent court. The non-applicants filed an application for execution before S.D.O., Nohar in which notices were issued to the applicants. The applicants filed their objections to the execution on the ground that Arazi Khasra No. 380 area 1 bigha 15 biswas had never been in occupation of the applicants and their suit was not maintainable at all, hence the decree is nullity. It had also been stated that the non-applicants have stated their possession on the basis of patta but they had never been in physical possession of the allotted land. After hearing both the parties, the learned S.D.O. rejected the objections raised by the applicants. Aggrieved by this, this revision has been filed. (3). I have heard learned counsel of both the parties and also have gone through the concerned record. (4). Learned counsel of the applicants has raised the same objection, which has been taken by him in his application under Section 47 of CPC. He has stated that the decree passed by the trial court is nullity; therefore, the execution cannot be made. He has Savitri Vs. Sharat Chandra and Ors. (1). On the contrary learned counsel of the non-applicants has contended that no appeal has been filed by the applicants against the decree passed by the trial court. They did not file any counter-claim along with their reply to the plaint filed by the non-applicants. He has Savitri Vs. Sharat Chandra and Ors. (1). On the contrary learned counsel of the non-applicants has contended that no appeal has been filed by the applicants against the decree passed by the trial court. They did not file any counter-claim along with their reply to the plaint filed by the non-applicants. It has also been contended by the learned counsel of the non- applicants that the applicants had never raised any objection regarding jurisdiction of the court. (5). I have considered the rival contentions of the parties. (6). It is not disputed that the non-applicants filed the suit under Section 88 of the Act in the court of S.D.O.; Nohar with regard to the disputed khasra numbers and the suit was hotly contested by the applicants. It is also not disputed that on merits the suit was decreed on 3.10.86, but the applicants have not filed any appeal against the judgment and decree passed by the learned S.D.O. and hence decree passed by the trial court dated 3.10.86 is final. The grounds taken by the applicants in the application before the executing court are not convincing at all. Had there been any jurisdictional error, it could have been challenged by the applicants before the trial court. The learned counsel of the applicants has failed to show as to how the decree passed by the trial court is without jurisdiction. Had there been any objection regarding the possession over the disputed land it could have been taken in the reply filed in the regular suit. Since the trial court has passed the decree in favour of the non- applicants on merits after hearing both the parties. Therefore, the grounds taken in the application before executing court are not sustainable at all. (7). Consequently, the revision is dismissed with costs. Pronounced in the open court.